According to the German Federal Court of Justice (Bundesgerichtshof - BGH), the answer is NO.

In a judgment delivered yesterday (I
ZR 11/16 - Preview III)
the BGH relied on the decision of the Court of Justice of the European Union
(CJEU) in GS Media, C-160/15[Katposts here]
and dismissed the action that the operator of a
photography website had brought against Google and its search engine.

Background

The applicant’s
website includes a restricted (password-protected) area to which customers can
only access upon payment of a fee. Once there, customers are able to download
the photographs placed in this area to their computers.

Some of these
photographs were re-uploaded unlawfully by customers onto freely accessible
websites. Relevant thumbnails were subsequently indexed on Google Images from
such freely accessible sites.

According to the
applicant, by indexing and displaying thumbnails of the photographs to which it
owns the copyright, Google had infringed its own exclusive right of
communication to the public pursuant to §
15(2) UrhG[the German Copyright
Act, by which this Member State transposed Article 3(1) of the InfoSocDirective into its own national law].

The BGH held that
Google had not infringed the applicant’s copyrights for displaying thumbnails of
and links to photographs publicly available on the internet without the
applicant’s consent.

As mentioned, to
reach this conclusion the BGH relied on the CJEU decision in GS Media, according to which the posting
of a link to a freely accessible website on which a copyright work is available
without the permission of the relevant rightholder falls within the scope of
Article 3(1) of the InfoSoc Directive if the link provider knew or could
reasonably know that the content linked to had been made available without the
rightholder’s consent.

The BGH also recalled that in GS Media the CJEU had stressed the importance of the internet
to freedom of expression and of
information, and that hyperlinks contribute to its sound operation as well as
to the exchange of opinions and information in that network characterized by
the availability of immense amounts of information [para 45 of GS Media].

However, in GS Media, the CJEU also stated that if the link provider operates
for profit [as is the
case of a search engine like Google], then

“it can be
expected that the person who posted such a link carries out the necessary
checks to ensure that the work concerned is not illegally published on the
website to which those hyperlinks lead, so that it must be presumed that that
posting has occurred with the full knowledge of the protected nature of that
work and the possible lack of consent to publication on the internet by the
copyright holder. In such circumstances, and in so far as that rebuttable
presumption is not rebutted, the act of posting a hyperlink to a work which was
illegally placed on the internet constitutes a ‘communication to the public’
within the meaning of Article 3(1) of Directive 2001/29.” [para 51 of GS
Media]

So?

According to the BGH
this presumption does NOT apply to search engines and for links displayed by
search engines because of the particular importance of search services for the
functioning of the internet. According to the German court, the provider of a
search function cannot be expected to check the lawfulness of the images
automatically retrieved from publicly accessible websites.

Google Image Search for IPKat

Conclusion

The BGH’s take on GS Media is an interesting one, and it
will be important to read the full text of the judgment once it becomes
available.

It appears that the German court’s decision was justified by concerns relating to
the possible disruptive effects that a strict application of CJEU case law
would have on the broader functioning of the internet. In this sense, the
decision echoes the tones used – way more vigorously than what the CJEU judgment does – by Advocate General (AG) Wathelet in his Opinion
in GS Media[here]. The AG rejected the very
idea that linking should fall within the scope of copyright protection at all.
Holding otherwise “would significantly impair the functioning of the Internet
and undermine one of the main objectives of Directive 2001/29, namely the
development of the information society in Europe. Such an interpretation could
also distort the ‘fair balance of rights and interests between the different
categories of rightholders, as well as between the different categories of rightholders
and users of protected subject-matter’.”[para 77 of the AG Opinion].

This said, it does not appear that – after GS Media – CJEU jurisprudence on the
right of communication to the public has become less stringent: the decisions
in Filmspeler[here] and Ziggo[here] are telling instances.

Finally, with particular regard to the issue of image search
engines, readers might remember that last year France adopted a law (LOI n° 2016-925 du 7 juillet
2016 relative à la liberté de la création, à l'architecture et au
patrimoine)[this is
the version currently in force]that
would require search engines displaying thumbnails of copyright works to be
part of a compulsorycollective management system for the reproduction of photographs and
images[here and here].

After France and
Germany (and amidst all activity and activism of the CJEU) it will be crucial
to see how legislatures and courts - both around the EU and at the EU level - will position
themselves in relation to online issues.

German Federal Court of Justice rules that GS Media presumption of knowledge does not apply to Google Images
Reviewed by Eleonora Rosati
on
Friday, September 22, 2017
Rating: 5

8 comments:

Simon Stokes
said...

Very interesting! Linking is one thing but what about Google creating thumbnails? The US courts have looked at this some time ago and applied fair yse to allow it - Kelly v Arriba Soft. Would a defence linked to Art 5(1) InfoSoc Directive apply? Don't think it would?

I was indeed surprised that the point of reproduction was not addressed in the press release - I look forward to reading the full judgment, and see whether the BGH tackled it. Note however that the press release seems to assimilate thumbnails to links for the sake of copyright treatment ...

The FCJ has already dealt with the reproductions that are made by Google for the thumbnails. The decisions are I ZR 69/08 and I ZR 140/10.

I find them rather unconvincing because the FCJ did come to the conclusion that Google makes reproductions that normally require the consent of the respective right owner. However, the FCJ assumed a "silent" consent by the right owners because the images were not protected (technically) against being indexed by search engines. In the second decision I mentioned, the FCJ even applied this reasoning to a case where the thumbnails were created from images that were online without the right owner's consent. To justify this, the FCJ pointed out that the same images where available elsewhere on the internet with the owner's consent.

GS Media et al have been over interpreted by the over enthusiastic, forgetting that the CJEU tends to focus on facts which leaves their judgments open to intepretation and application with different outcomes.

"According to the BGH this presumption does NOT apply to search engines and for links displayed by search engines because of the particular importance of search services for the functioning of the internet"

A chaebol effect for the Giant Moneyed Google....

And let's be clear: this statement is NOT a presentation of a Fair Use exception.

Reproduction was not covered because (a) defendant was AOL not Google and AOL only had only embedded Google's search results. Thus no reproductions by AOL (b) Google does not store thumbnails on German territory (cf BGH - thumbnails I and II).

Would it not have been possible to come to a similar result without being liberal with the GS Media ruling? I am specifically thinking about Google (or indeed ISP's in general) excemption from liability. As far as reproduction is concerned, could this not be covered by the temporary reproduction exception from the Copyright Directive?